Share this story

Further Reading

According to the family of an Arizona woman who was killed by a self-driving Uber car last year, the City of Tempe is liable for her death and owes $5 million each to her husband and her daughter.

News of the lawsuit was first reported by the Arizona Republic, which noted that Elaine Herzberg's survivors have previously settled a similar lawsuit with Uber itself.

This case, however, makes the claim that the city was negligent when it set up a median on Mill Avenue—where the accident occurred—that contained an X-shaped "brick pathway cutting through the desert landscaping that is clearly designed to accommodate people to cross at the site of the accident."

After the accident, however, the city changed the design of this portion of the road and removed the pathway. It was replaced with various types of landscaping seemingly designed to discourage jaywalkers.

Nikki Ripley, a Tempe spokeswoman, did not immediately respond to Ars' request for comment. She also declined to comment on the litigation to the Arizona newspaper.

Share this story

Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is out now from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar

I don't know if the city should be legally liable, but the design really was suggestive of a walk-way, and they obviously had other people using that way, since they had to post no-walk signs there. I'm glad they changed it.

I don't know if the city should be legally liable, but the design really was suggestive of a walk-way, and they obviously had other people using that way, since they had to post no-walk signs there. I'm glad they changed it.

Woof. American city planning is usually adversarial to pedestrians and I especially love it when they want the appearance of being walkable but it's so obviously superficial.

"The report confirms that the sensors on the vehicle worked as expected, spotting pedestrian Elaine Herzberg about six seconds prior to impact, which should have given it enough time to stop given the car's 43mph speed."

"The problem was that Uber's software became confused, according to the NTSB. "As the vehicle and pedestrian paths converged, the self-driving system software classified the pedestrian as an unknown object, as a vehicle, and then as a bicycle with varying expectations of future travel path," the report says."

"At 1.3 seconds before impact, the self-driving system determined that an emergency braking maneuver was needed to mitigate a collision. According to Uber, emergency braking maneuvers are not enabled while the vehicle is under computer control, to reduce the potential for erratic vehicle behavior. The vehicle operator is relied on to intervene and take action. The system is not designed to alert the operator."

I don't know if the city should be legally liable, but the design really was suggestive of a walk-way, and they obviously had other people using that way, since they had to post no-walk signs there. I'm glad they changed it.

Woof. American city planning is usually adversarial to pedestrians and I especially love it when they want the appearance of being walkable but it's so obviously superficial.

That's a walkway that was never meant to be used.

Sadly, it's right by a really popular music venue as well (So people will use it to cross in the middle of the night) and this area has so many other things going wrong for it. (That building to the north opens and closes it's shutters to display words on holidays or events for example, the bridge is really popular walking area for people getting away from the main drag of Mill which is a large nightlife scene.)

I honestly though this accident happened about half-a-mile north of this point, where the roads are even more windy and there's almost no light whatsoever. To see that it happened near a location which is higher than average pedestrian traffic is even more heartbreaking in so many ways.

This is just what would have happened if the person was hit by a non AV car, this is just overshadowed by the Uber involvement. The city is at fault and will settle with the family. This is not greed at all, this has to be done so the city will 'learn it's lesson' just as an individual would be punished for negligence also. The suit is a modest amount imo

It was going to happen eventually, but I think the fact that this was a AI/Uber issue made it even more prone to scrutiny.

This design was made to look nice and not be functional, yet it's placed in a location where people are looking for something functional to use. As others have pointed out, it's really bad city planning in a location that's generally newer than most other cities.

I hate to say it, but they do have a point, if the median design was as I’m picturing it...basically suggesting a crosswalk where one didn’t and shouldn’t exist.

Why would you hate to say it? You are correct, the city messed up. Uber messed up too. Sometimes, more than one entity can be responsible for an incident (this is true both factually and legally). Here, it seems like at least three contributed to the accident:

(1) Uber (and its inattentive safety-driver);(2) the city for its ill conceived design; and (3) the victim;

Not all of those are equally responsible, but from what we know it is pretty reasonable to say that they all share some of the blame. Personally, if I were evaluating the case, I'd put the highest percentage on the city, followed by Uber, and then the victim at much lower level.

I hate to say it, but they do have a point, if the median design was as I’m picturing it...basically suggesting a crosswalk where one didn’t and shouldn’t exist.

Why would you hate to say it? You are correct, the city messed up. Uber messed up too. Sometimes, more than one entity can be responsible for an incident (this is true both factually and legally). Here, it seems like at least three contributed to the accident:

(1) Uber (and its inattentive safety-driver);(2) the city for its ill conceived design; and (3) the victim;

Not all of those are equally responsible, but from what we know it is pretty reasonable to say that they all share some of the blame. Personally, if I were evaluating the case, I'd put the highest percentage on the city, followed by Uber, and then the victim at much lower level.

Because by reports I’ve read, Uber did plenty wrong to shoulder all the blame here. Not to mention the ever growing list of instances where the company has acted unethically, or worse. So it’s dissaponting (to me) that they now have another party to place the blame on. Although I seem to remember the victim’s family already settled with Uber. So perhaps it’s a moot point.

Edit to add: in my opinion Uber is the prime actor at fault here. They disabled safety equipment that would have at least lessened the odds of death.

"The report confirms that the sensors on the vehicle worked as expected, spotting pedestrian Elaine Herzberg about six seconds prior to impact, which should have given it enough time to stop given the car's 43mph speed."

"The problem was that Uber's software became confused, according to the NTSB. "As the vehicle and pedestrian paths converged, the self-driving system software classified the pedestrian as an unknown object, as a vehicle, and then as a bicycle with varying expectations of future travel path," the report says."

"At 1.3 seconds before impact, the self-driving system determined that an emergency braking maneuver was needed to mitigate a collision. According to Uber, emergency braking maneuvers are not enabled while the vehicle is under computer control, to reduce the potential for erratic vehicle behavior. The vehicle operator is relied on to intervene and take action. The system is not designed to alert the operator."

Uhm, yes?

These 3 paragraphs are contradictory.

The sensors worked as intended 6 seconds prior to impact (someone didn't walk away from this alive)The software got confused (so it didn't work correctly)It realized too late that the object was a person and was too close to stop. On top of that the vehicle didn't stop because of the autopilot driving. The system is design to not warn the driver about killing people. That's "impressive" engineering from Uber.

Eye of the beholder. I see a great design where you scurry to the middle when one side is clear then to the far side when that side is clear. You are not just standing in the middle, you have an actual safe zone. How does it get better?

Of course this is not suitable for beings that are unable to cross a road intelligently like cats, toddlers, the infirm, dogs that shiver and various critters.

Traffic Engineer here. It’s not a crosswalk if it’s not marked and if there are no curb ramps for ADA compliance. That said? The city will probably settle for about a million or two. We’ve removed marked midblock crosswalks before because of getting sued over people getting hit in them as if they’re magical.

Man, what ever happened to personal responsibility? Look before you cross the road (legally or not). Is that so hard? Why should it be the city's fault if someone doesn't do that?

because they're letting an illegal ponzi scam/human trafficking app beta test human meat bags on public roads without the public opting in, these vehicles dont even notify cars around them there's an idiot meat bag inside with no hands on the wheel so they can avoid them, if a minority ghost rides his whip he's put in a cage without murdering a citizen, but evil rich fuck can put in a ghost ride your whip button & get nothing but a fine which is equivalent to pocket change because they get to use free labor & pay .60 per mile 1975 wages & since its an app apparently it becomes legal to violate 13th amendment rights millions of times per day

A few things for you to try:1) RTFA. That would mean you know that the lawsuit is about poor median design. You could cut out half your stupid rant right there because it does not apply.2) Go retake English. Break things up into full sentences with punctuation. Use paragraphs to explore a single coherent topic. You know, learn to communicate effectively.3) Take a logic class. Start making coherent arguments. Use premises, connect them and reach a sound conclusion.4) Ghost riding a whip which is possibly a bad thing? Maybe use real language and not stuff off the top of your head when you are high. Again, the goal is to communicate outside the inside of your skull.

Man, what ever happened to personal responsibility? Look before you cross the road (legally or not). Is that so hard? Why should it be the city's fault if someone doesn't do that?

because they're letting an illegal ponzi scam/human trafficking app beta test human meat bags on public roads without the public opting in, these vehicles dont even notify cars around them there's an idiot meat bag inside with no hands on the wheel so they can avoid them, if a minority ghost rides his whip he's put in a cage without murdering a citizen, but evil rich fuck can put in a ghost ride your whip button & get nothing but a fine which is equivalent to pocket change because they get to use free labor & pay .60 per mile 1975 wages & since its an app apparently it becomes legal to violate 13th amendment rights millions of times per day

...what?

No, seriously, I am very confused. Maybe we can start by defining what it means to "ghost ride a whip"...

Man, what ever happened to personal responsibility? Look before you cross the road (legally or not). Is that so hard? Why should it be the city's fault if someone doesn't do that?

because they're letting an illegal ponzi scam/human trafficking app beta test human meat bags on public roads without the public opting in, these vehicles dont even notify cars around them there's an idiot meat bag inside with no hands on the wheel so they can avoid them, if a minority ghost rides his whip he's put in a cage without murdering a citizen, but evil rich fuck can put in a ghost ride your whip button & get nothing but a fine which is equivalent to pocket change because they get to use free labor & pay .60 per mile 1975 wages & since its an app apparently it becomes legal to violate 13th amendment rights millions of times per day

...what?

No, seriously, I am very confused. Maybe we can start by defining what it means to "ghost ride a whip"...

I think from context it is a bad thing. Maybe. But what are the alternatives? Is zombie riding OK? What if I vampire drain the whip? Would that make me a good bad guy? Would werewolves silver polish this whip? So many inane questions, so little time.

PS: The urban dictionary ghost whipping is too stupid a thing to use in polite, or really any, conversation.

It was going to happen eventually, but I think the fact that this was a AI/Uber issue made it even more prone to scrutiny.

This design was made to look nice and not be functional, yet it's placed in a location where people are looking for something functional to use. As others have pointed out, it's really bad city planning in a location that's generally newer than most other cities.

I agree it was bad city planning and would happen eventually, but the interesting (and tragic) part is how AI fits into this and how this will affect our legal system.

If it was a meatbag behind the wheel, they most likely have said they didn't see the pedestrian or couldn't act in time and the design deficiency would factor in.

However with AI and logging, we know Uber's sensors saw the pedestrian and could have reacted in time, but due to faulty programming/logic and disabling of safety features the car didn't stop and the lady died.

(IMHO) How can you argue design deficiency if you saw the danger and could have stopped in time, but failed to react. In meatbag terms, the difference is between I couldn't see the lady because of the bad city planning -vs- I saw her and could have stopped, but decided not to.

Looking at the image in what appears to be the middle of no where (why would you put the bricks there), I am wondering if that used to be paved, it leads to a bridge, so maybe it was a cross-over while one bridge or the other was under construction.

Do they regularly expect to put cars on it again? As in every X years during bridge work.

edit: Looked again with street view (instead of just overhead), does not look like it was ever any kind of paved crossover.

Looking at the image in what appears to be the middle of no where (why would you put the bricks there), I am wondering if that used to be paved, it leads to a bridge, so maybe it was a cross-over while one bridge or the other was under construction.

Do they regularly expect to put cars on it again? As in every X years during bridge work.

It's hard to click over to on the Streetview without accidentally clicking onto one of the higher-elevation segments, but after noticing a car at a lower elevation I clicked around and managed to get into it. It turns out there's clearly marked parking spaces in there. https://goo.gl/maps/kziDUJmfGzJ2 That's not something people just started using as parking, someone clearly designated it as a parking lot.

Given the fencing forcing people to walk out the same way they drove in, I kind of get the impression that they put that red brick walkway-looking thing in first and then someone changed their mind on whether there should be access to the parking lot from that direction, and that the fencing was thus put in at some point afterward.

Man, what ever happened to personal responsibility? Look before you cross the road (legally or not). Is that so hard? Why should it be the city's fault if someone doesn't do that?

because they're letting an illegal ponzi scam/human trafficking app beta test human meat bags on public roads without the public opting in, these vehicles dont even notify cars around them there's an idiot meat bag inside with no hands on the wheel so they can avoid them, if a minority ghost rides his whip he's put in a cage without murdering a citizen, but evil rich fuck can put in a ghost ride your whip button & get nothing but a fine which is equivalent to pocket change because they get to use free labor & pay .60 per mile 1975 wages & since its an app apparently it becomes legal to violate 13th amendment rights millions of times per day

...what?

No, seriously, I am very confused. Maybe we can start by defining what it means to "ghost ride a whip"...

There are several of those in Toronto, they don't build them anymore but the city doesn't take them out because the laws make it basically impossible to sue them if you get hurt. Traffic accidents are automatically your fault if you're breaking the law.

Any car that hits you there means you're jaywalking (it's not a crosswalk). It's not like the US where you can sue and win even if you're totally at fault.

Man, what ever happened to personal responsibility? Look before you cross the road (legally or not). Is that so hard? Why should it be the city's fault if someone doesn't do that?

because they're letting an illegal ponzi scam/human trafficking app beta test human meat bags on public roads without the public opting in, these vehicles dont even notify cars around them there's an idiot meat bag inside with no hands on the wheel so they can avoid them, if a minority ghost rides his whip he's put in a cage without murdering a citizen, but evil rich fuck can put in a ghost ride your whip button & get nothing but a fine which is equivalent to pocket change because they get to use free labor & pay .60 per mile 1975 wages & since its an app apparently it becomes legal to violate 13th amendment rights millions of times per day

...what?

No, seriously, I am very confused. Maybe we can start by defining what it means to "ghost ride a whip"...

Fwiw, it seems to readout like a former employee being very bitter about Uber.

Regardless, the steering wheel originally was known and eventually forgotten as the whip; I imagine ghosting is the poster's way of describing the self driving part. The word with the original meaning intact has resurfaced with rappers and hip hop to reference a very fancy car. (The rest is a bad rant about the inequality of justice when it comes money.)

As for "Ghost Ride a Whip", it has potential for something—personally, it's funny and feels philosophically deep at the same time—needs work though.

Traffic Engineer here. It’s not a crosswalk if it’s not marked and if there are no curb ramps for ADA compliance. That said? The city will probably settle for about a million or two. We’ve removed marked midblock crosswalks before because of getting sued over people getting hit in them as if they’re magical.

Engineer here.

Traffic engineer status in whatever state you are deemed a traffic engineer (which is generally a degree and not a legal distinction, basically everywhere) does not grant you authority to determine what is and is not a crosswalk in all (or effectively any) jurisdictions, because you have neither legal authority nor psychological/sociological understanding to decide such.

That said...

In Arizona, an "unmarked crosswalk" is one which is a natural extension of some other walkway (such as a sidewalk that intersects a roadway, even without paint on the roadway to extend the walkway), EXCEPT if that walkway is marked with signage to indicate otherwise. This particular "intersection" had exactly such signage, rendering it an illegal crosswalk, for pedestrians.

This place had "no crossing" signs at all four possible points of crossing for pedestrians. Those signs had been there for significant time before the woman crossed. She, ostensibly, had plenty of notice that this was not an acceptable place to cross, except from her own intuition.

Does that excuse Uber's clearly flawed software? ABSOLUTELY NOT. THAT SEEMS EGREGIOUS.Does that excuse the "safety driver" being on her phone? ABSOLUTELY NOT. That is unforgivable by all parties, in my view.Does that place all liability on Uber? I'm sorry. But, under Arizona law? No. The driver is responsible for not yielding to a pedestrian in "unmarked crosswalks" but this is not an "unmarked crosswalk," by its legal definition in the ARS (Arizona Revised Statutes). She may be due a citation for failure to control her vehicle to avoid collision with an object or person, but she is not at fault for the death, which is why she hasn't lost a criminal case, because the law says otherwise.Just because it looks ok to cross at a point in a road does not mean it is, in fact, ok do to so, in pretty much any jurisdiction on the planet. In fact, in a lot of places, the pedestrian can get a sizable fine or even JAIL TIME for doing so. Know why? Cars win - pedestrians lose. The law is intended to keep people safe. If the practical fact of the matter is that someone is going to die more than half the time if a particular action is taken, then the law is VERY right to say what it does. The pedestrian was wrong. Period.BUT.Uber was also wrong. Their software was VERY clearly faulty, in that the sensor data available was CLEARLY indicative of a "STOP THE FUCKING CAR" situation.The city is also wrong, in that a reasonable human would CLEARLY consider that place to be a reasonable place to cross the road, regardless of signage to the contrary (ok...I'm being really nice to the person ignoring those signs). The city should have put pedestrian safety above aesthetics when designing that area.The "pedestrian" was VERY clearly in the wrong. Per Arizona (and pretty much everywhere else) law, you cease to be a pedestrian when you mount your bicycle. Had she been crossing on foot? Yes - she'd have been a pedestrian in any legal or intuitive definition of the term. However, she was riding her bike. Legally, that made the combination of her and her bike a vehicular participant in local traffic. Thus, the rider was illegally entering an unmarked intersection before other vehicles had cleared it, with right of way denied by signage and the general design of the "intersection" (which does not exist, per any legal definition available in Arizona, but I'm giving HUGE leeway to that side of the argument). She crossed where a sign said not to, on a busy street, at night.

Hate Uber all you want, but that has no place, here.Uber has moral fault, here, outside of anything you know or want to know about them, because their software very clearly failed.The city has moral fault, here, because this is an AWFULLY designed stretch of various collections of pavement and masonry that could entice a reasonable person to utilize it as an intersection.The victim has legal and moral fault, because she crossed where she was CLEARLY not supposed to, in a place where she frequently traveled (and thus should have known better, unless she could not read English signage...which seems pretty unlikely in this case...), and because it was her responsibility, as a pedestrian, to obey posted signage and local traffic law for her own safety's sake.And last, but not least, the "safety driver" has both moral and legal fault, in that Arizona statutes clearly defined (at the time of the accident) the responsibility of the "driver" (which was a human in control of the vehicle), and that she failed to uphold those responsibilities, through messing with her phone or WHATEVER she was doing.

All of that is to say it's a whole lot more complex than you simply coming in here and saying "I'm a traffic engineer, so X party is wrong and Y party is right."All parties involved share some culpability, here, and the degree of each is really up to the judges and juries in Arizona, Maricopa County, and the City of Tempe - not a bunch of NALs on the internet.

Edit: Basic factual incorrectness about her riding vs walking stricken, since she was, in fact, walking, and modified following paragraphs to reflect that.